141 F. 910 | 6th Cir. | 1905
'This was a suit to recover damages for personal injuries (the loss of a foot) suffered by the plaintiff while in the employ of the defendant as a yard switchman. The court directed a verdict against the plaintiff, on the ground that the testimony showed he was guilty of contributory negligence. The case is here upon the question whether it was one for the jury.
The accident took place on August 8, 1903. Taggart, the plaintiff, was then 35 years old, and had been employed by the steel company about 12 days. Before that time, he had been employed some 3 years as a brakeman in yard and road service. The company owns and operates a rolling mill near Toledo, Ohio, and in connection with it a number of tracks and switches in the yard which incloses its plant. On these tracks it operates a pony or switch engine for convenience.in shifting freight cars. For this purpose it employs an engineer and a switchman. On the day of the accident, the plaintiff and the engineer were engaged in switching cars in the yard. Three box cars were attached to the engine. It was necessary for the plaintiff to cut off two of these cars by uncoupling them. The cars were moving at the rate of from two to
1. Counsel discussed the question whether the Ohio statute requiring railroad companies to block their frogs did, or did not, apply to the defendant. The act in terms applies to “every railroad corporation operating a railroad or part of a railroad in this state.” 93 Ohio Laws, p. 342. Failure to comply with the act subjects the railroad corporation to a punishment by fine. Although, by the law of Ohio, a manufacturing company may construct a railroad, when such purpose is stated in its articles of incorporation (Rev. St. § 3866), and with respect to it is made subject to the general railroad laws of the state, we are not satisfied that the yard tracks and switches, operated by the defendant in the manner we have described, come within the intent and meaning of this statute. U. S. v. Harris, 177 U. S. 305, 20 Sup. Ct. 609, 44 L. Ed. 780. They do not seem to us to constitute a railroad or make this manufacturing company a railroad corporation under the law of Ohio. We might as well hold that every private switch constitutes a railroad and makes the person or company owning and operating it a railroad corporation. These yard tracks are nothing more than private switches and were only used as such. There were some 10 frogs in this yard, all unblocked, and covered with cinder, so their character was not open and obvious. The failure to block them, if not negligence as a matter of law under the Ohio statute, might have been held by the jury to be negligence in fact under all the circumstances.
This brings us to another consideration, whether, if Taggart was negligent in stepping in to lift the pin, such negligence contributed directly to his injury; in other words, whether he should have anticipated the accident which befell him. Ought he to have forseen the unblocked frog ? The record does not show that the cars were moving at a speed dangerous in itself. If Taggart, in stepping in, had stumbled and had been run over, or in lifting the pin had caught his hand and had it crushed, it might well be said that these were contingencies he should have anticipated, and that his negligence in exposing himself to such dangers was the proximate cause of his injury; but there was testimony
Being of the opinion that the case was one for the jury, the judgment is reversed, and the case remanded for a new trial.